Should “hate speech” be free?

Recent events in the US have not only shown clearly the disturbing levels of hatred espoused by those following neo-Nazi and white supremacist ideologies, but they have also shown the power of challenging such views, and highlighted the issues around ‘hate speech’ and freedom of expression. 

Our latest Q&A looks at how to challenge hateful and discriminatory expression, while protecting free expression and promoting equality.

Can the right to freedom of speech be limited? If so, what limits are allowed?

Freedom of speech is a fundamental human right – crucial not only to how we express and exchange ideas – but to the very functioning of democracies. It is how we learn what our governments are doing, and how we exercise dissent and demand accountability.

Because freedom of speech is so important, any limits on it have to be exceptional, clearly defined, and justified. International human rights law doesn’t just draw a line around what can and cannot be said, but sets out strict criteria which States must adhere to in order to justify any measures they take to restrict speech.

These requirements are often called “the three-part test”. Any restriction must be:

  1.  Clearly set out in an accessible law;
  2. Pursue one of a few narrowly defined objectives (such as protecting the rights of others, for public order or national security); and
  3. Be necessary and proportionate in a democratic society.

Within this, for example, direct threats of violence may be prohibited in order to protect public order.

Similar limitations apply to the freedom to peacefully assemble. It is permissible, for example, for a government to prohibit the carrying of weapons during an assembly, to both ensure public order and the rights of others to peacefully engage in proximate counter-protests.

At the same time, international human rights law recognises that certain categories of speech can be so harmful that prohibitions may be mandatory. This includes, for example, the advocacy of discriminatory hatred to incite discrimination or violence. Assemblies that have incitement as their aim may similarly be restricted.

However, limiting speech solely because it is critical of the government, or because some people find it offensive, is never justified.

What is the definition of ‘intolerance’ and ‘hate speech’?

There are no universally agreed legal definitions of “intolerance” or “hate speech”.

“Intolerance” and “hate speech” are very broad terms – they can be used to describe any discriminatory expression that denies the humanity of others or incites harm against a particular group. Such speech undeniably has a negative impact on societies, in particular for minority and marginalised groups.

International human rights law is clear that expression cannot be limited solely on the basis that it is offensive or insulting, and this includes speech that may be hateful. However, governments are required to limit speech where it is so clearly dangerous that limitations are the only way to prevent serious harms from occurring. These types of speech may be understood as the most severe forms of “intolerance” or “hatred”, namely the advocacy of discriminatory hatred, intended and likely to incite violence or discrimination. Restricting direct threats of discriminatory violence, may similarly be restricted.

Generally speaking, national governments define these terms in their own laws, which is why approaches vary so greatly between countries. Confusion has led to many laws being enacted that do not comply with international human rights law.

ARTICLE 19 observes two main problems with “hate speech” laws as governments define them. On the one hand, we see powerful individuals inciting or threatening violence with impunity where they should be held accountable. On the other hand, we commonly see these laws abused to target legitimate dissent in many parts of the world, when such speech should be protected.

If racists aren’t allowed to speak freely, how can societies fight back against their ideologies? Is it better to allow them to speak out so that their ideas can be challenged?

Yes – ARTICLE 19 believes that more, counter speech is definitely the best response to “hate speech.”

Since hatred is rooted in fear and in ignorance, and peddled through propaganda and disinformation, it is only by countering this with solidarity for the oppressed and with informed and accurate argument, that equality and justice can win out.

But this isn’t the only reason. Before rushing to advocate greater controls on expression, we should consider the unintended consequences of giving the government too much power to control what we can and cannot say. It is only in the most extreme cases, where a person intends to incite harm and that harm is likely to occur, that limiting speech may be necessary.

Once censorship powers broader than this are created, they are difficult to roll back and can easily get into the wrong hands. For example, a racist demagogue could rise to power and turn these laws against advocates for equality and justice. It is then easier for them to entrench their power to see off any form of opposition, and commit other human rights violations.

Even where only the most serious forms of “hate speech” are prosecuted, censorship can prove ineffective at addressing the root causes of hatred and counter-productive to the aim of promoting inclusion and equality. There is little evidence that censorship, in particular criminal prosecutions, changes hearts and minds, whereas education, combined with a range of positive measures seeking to break down barriers between groups does. Rather, censorship may be used by hate-mongers to feed their paranoid conspiracy theories as their movements go underground, while prosecutions may elevate racists from the fringe to greater prominence by turning them into martyrs for their “cause”.

It is important to remember that the true cause of racists and fascists is not “freedom of speech”, no matter how often they might claim that it is.

Fascists are often the first to respond with violence to their ideas being challenged, and when in power to react to dissent with censorship. The weakness of their arguments is why in Charlottesville they brought guns and other weapons to a battle of ideas; the intimidatory tactic these groups trade in is censorship, not free speech. Free speech has never meant an obligation for one group to acquiesce to ideas another imposes by force, in particular where that means staying passive in the face of bigotry and hate. Free speech requires one to expect that when one’s ideas are vile, others will shout back louder and with greater moral force and clarity and win the argument.

It is incumbent on all people, but most importantly political leaders and other influential figures, to firmly denounce racism and hatred, and speak out for those who are oppressed and marginalised. It is entirely coherent to do this while defending free speech.

What is the role of a free press when it comes to supremacist demonstrations? Should journalists provide an equal platform to let everyone defend their ideas?

The media are among those who have a special responsibility to ensure the public is informed on matters of current affairs, and to use their privileged position in the information landscape to challenge discrimination and promote equality. In order to play this role, the press needs to be free and able to operate independently in an environment that favours the development of pluralistic and diverse media landscapes.

It is not the role or obligation of a journalist to simply convey all views they encounter, for example by giving an uninterrupted platform for persons to advocate hatred without challenge. At the same time, issues around racism and other forms of discrimination are clearly matters that are in the public interest to be openly debated, and which the public has a right to know about.

Journalism is a profession that is informed by robust rules of ethics. Professional standards guide journalists on how to approach difficult questions around racism and incitement to violence in the course of reporting on current events.

Journalists must not become passive intermediaries. They have a role to play in avoiding drawing false equivalencies between opposing views; they should inform the public where one side of an argument is based on deliberate lies, and when another is based in evidence and experience. They ought therefore play an active role in determining that the public receives timely and accurate information on matters in the public interest. It requires determining whether a hateful viewpoint is newsworthy at all, and whether covering such fringe groups risks elevating their status. If it is newsworthy, it means ensuring that when proponents of hate spout lies, that these are contested with facts (there can be no “alternative facts”), and that when hateful stereotypes are peddled, they are countered with the voices of marginalised groups whom the hatemongers seek to disparage.

Unfortunately, this is too often not the reality. Sensationalism is often favoured over accuracy and impartiality, and marginalised groups are widely denied any meaningful opportunity to speak for themselves on outlets with the largest audiences. This can often be a product of a media sector lacking diversity, media ownership being monopolised or concentrated among a privileged few, and increasing economic strains in a changing media landscape. This is why it is important that governments support independent media, and promote policies that promote pluralism and equality in the media sector.

Lastly, in the digital age we are all more easily publishers of content if we chose to be, and can in our own ways fulfil the function of journalists through the various social media and blogging platforms we use. We should therefore all become more active as consumers and producers in the media landscape, and recognise our own responsibilities to challenge hatred wherever it exists and promote equality.

If you’re interested in reading more on hate speech, see ARTICLE 19’s tool kit here.